Williams v. United States, 6040.

• Decision Date: 08 July 1959
• Docket Number: No. 6040.,6040.
• Citation: 267 F.2d 559
• Parties: Leonard J. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

267 F.2d 559 (1959)

Leonard J. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 6040.

United States Court of Appeals Tenth Circuit.

June 8, 1959.

Rehearing Denied July 8, 1959.

Willis V. Carpenter, Denver, Colo., for appellant.

George E. Peabody, Asst. U. S. Atty., Wichita, Kan. (Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., on the brief), for appellee.

Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and KNOUS, District Judge.

BRATTON, Chief Judge.

Drawn under 18 U.S.C. § 1114, an indictment returned in the United States Court for Kansas charged that Leonard J. Williams forcibly assaulted with a knife an employee and correctional officer of the federal penitentiary at Leavenworth, Kansas, who was then and there engaged in the performance of his official duties. The defendant pleaded guilty and was sentenced to imprisonment for a period of seven years, to begin at the expiration of the sentence he was then serving in the penitentiary at Leavenworth. Almost four years after the imposition of the sentence of seven years, the defendant filed a motion in the nature of petition for writ of error coram nobis in which he sought to have such judgment and sentence vacated upon the ground that his waiver of fundamental rights and plea of guilty were not freely and voluntarily given and entered but were the result of duress and coercion exerted upon him by officials of the prison. The motion was denied and an appeal was seasonably perfected.

The court treated the motion filed by the appellant as one under 28 U.S. C.A. § 2255. The statute empowers a person in custody under sentence of a court established by Act of Congress to challenge by motion on one or more of the grounds enumerated in the statute the sentence under which he is in custody. The statute is available only to attack a sentence under which a prisoner is then in custody. It cannot be employed to attack a sentence under which the defendant has not yet begun to serve. Opinion and concurring opinion in Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L.Ed.2d 407; Ellison v. United States, 10 Cir., 263 F.2d 395.

At the time of the assault upon the employee and correctional officer of the federal penitentiary, and at the time of the denial of the motion for a writ of error coram nobis, petitioner was confined in that penal institution for service of another sentence. While it does not affirmatively appear in the record, it is stated in the brief of the Government — and not challenged by the appellant — that the sentence then being served was for bank robbery. Appellant has not begun to serve the sentence of seven years for assault upon the employee and correctional officer of the penitentiary. And therefore section 2255 is not yet available to him as a procedural channel through which to challenge such sentence. Opinion and concurring opinion in Heflin v. United States, supra; Ellison v. United States, supra.

But appellant...